Complainant

Respondent

Parties

John  Herd

Tesco Plc

Representatives

  Self

Niamh Ní Cheallaigh, Ibec.

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-00050604-001

13/05/2022

The Complainant commenced employment with the Respondent on 8th August 2008 and was employed as a Deputy Manager. His contracted hours were 40 hours per week for which he was paid €33,900 per annum.

Employment ended on 20th February 2022.

This complaint, submitted under section 8 of the Unfair Dismissals Act, 1977 was received by the Workplace Relations Commission on 13th May 2022.

At the hearing of the complaint on 17th November 2022 the Respondent was represented by Ms. Niamh Ní Cheallaigh, Ibec and the Complainant represented himself.

1.       The Complainant commenced employment with the Respondent on 8 August 2008 and was employed in the Crumlin Express store as a Deputy Manager. His contracted hours were 40 hours per week with an annual salary of €33,990. A copy of the contract was available at the hearing.

2.       The Complainant received training on all of the Respondent’s policies and procedures including the Company Colleague Purchase Policy in relation to colleagues paying for goods at the time of consumption and the Company Honesty Policy. The training associated with this policy is documented in the Complainant’s Training Record Card. The Complainant as a Deputy Manager was an advocate for all policies in store and would have ensured these are adhered too at all times. In the event that a colleague in the store is found to be in breach of any policy the Complainant in his role was responsible for investigating these matters or may be appointed as a disciplinary officer.

3.       In September 2021 the Respondent’s Target system reported unusual activity in the Crumlin store.  Target is a software programme that is designed to manage and reduce shrink (loss) and integrates CCTV and existing security to identify potential risks and provide image-based evidence to enhance the level of protection in stores.

4.       As a result, it was alleged that the Complainant took a can of Red Bull and consumed it without having paid for it on three separate occasions: the 3rd, 8th, and 18th of October 2021.

5.       The Complainant was informed of the allegations against him in a meeting with Store Manager Emma Doyle on 29 October 2021. He was suspended on full pay pending an investigation and invited to attend an investigation meeting on 4 November 2021. It was clearly set out that the allegations against the Complainant were:

·         Alleged breach of the disciplinary policy under the heading of ‘theft or fraud or attempted theft or fraud if proven to the company’s satisfaction’

·         Alleged breach of the Company Honesty Policy

·         Alleged breach of the bond of trust

6.       Ms Mary White, Colleague Relations Partner, conducted the investigation and met with the Complainant on 4th and 10th of November 2021. The Complainant was offered the right to representation in both meetings, which he declined. Notes of the meetings are at were available at the hearing of the complaint.  In summary the Complainant was informed of the alleged breaches and given details of the incidences in question. The Complainant was given the full details contained within the target report which described him as having allegedly taken a red bull drink and consumed it without having paid for it on three separate occasions, occurring on the 3rd, 8th, and 18th of October 2021. In each instance the Complainant was given the opportunity to explain what had happened, in which he said he could not remember the incidents and was not aware that he had not paid for the items and that this was due to distraction caused by a personal issue. The Complainant stated he had just moved back in with his abusive father, he was not sleeping, and his girlfriend was not well. The Complainant also offered to pay for the items at this time. Prior to the second investigation meeting on the 10th of November 2021 the Complainant was issued with the CCTV footage of the alleged incidents along with instructions on how to view the footage. However, the Complainant was unable to view the footage prior to the meeting but was happy to continue, declining the offer to reschedule. The Complainant claimed that his actions were in no way an attempt to defraud or steal from the company, that he had 13 years’ service and had never had an issue of this type, and that he was not in the right state of mind having been extremely distracted.

7.       An invite to an investigation outcome meeting was issued to the Complainant on the 11th of November 2021. The investigation outcome meeting was held on the 16th of November 2021 during which the Complainant was informed that due to breaches of the Company Honesty and Company Purchases policies, the matter would proceed to a disciplinary hearing under the heading of serious misconduct and that a potential outcome was dismissal. The allegations in relation to the disciplinary policy, honesty policy and bond of trust were upheld in the findings of the investigation, which were provided to the Complainant on the 16th of November 2021 in an Investigation Outcome Report.

8.       On the 16th of November 2021 the Complainant was invited to attend a disciplinary hearing and was provided with the details of hearing alongside the Respondents Disciplinary Policy. The meeting took place on 20th of November 2021 and was conducted by Ms Emma Doyle, Tesco Crumlin Express Store Manager. The Complainant chose not to have a representative accompany him to the disciplinary meeting and the investigation outcome report was then read aloud by Ms Doyle. The Complainant was asked if he had any comments to make or if he would like to watch the CCTV footage. The Complainant confirmed that he did not want to watch the CCTV footage and that he wanted the process to be over due to stress. He added that he has 13 years’ service and had never done anything like this, stating that he was not sleeping well, was very stressed at home, and would pay back the €9.45. Ms Doyle noted that this would be taken into account.

9.       The Complainant was issued with an invite to a disciplinary outcome meeting on the 14th of December 2021. The disciplinary outcome meeting was held on the 16th of December 2021. The Complainant declined to have representation at this meeting. Ms Doyle advised that having taken everything into consideration, including the Complainant’s responses, she was satisfied that the Complainant’s conduct and behaviour were totally unacceptable and that the bond of trust placed in him by the Respondent had been broken to such an extent that it was beyond restoration. Ms Doyle was satisfied that the appropriate disciplinary sanction was dismissal effective immediately.

10.   The Complainant was offered the right to avail of the internal appeals mechanism. The Complainant lodged an appeal against the disciplinary outcome on the 31st of December 2021 stating that the outcome was excessive. The Store Manager of Tesco Drumcondra, Ms Deborah Comiskey, was appointed to conduct the appeal meeting which took place on the 12th of January 2022. The Complainant set out his grounds of appeal under each breach. During the appeal hearing the Complainant’s mitigating circumstances changed whereby in the investigation he had set out that he had just moved back in with his abusive father, during the appeal hearing he referenced a mitigating factor that he was living with his girlfriend’s mother.

11.    Ms Comiskey issued the appeal outcome on the 3rd of February 2022. The Complainant did not attend the first Appeal Outcome Hearing on the 3rd of February 2022. The Complainant attended an appeal outcome hearing on the 15th of February 2022 in which the outcome was read to him. The Complainant declined representation at this meeting.

12.   In relation to appeal ground 1, that the full circumstances, such as length of service, behaviour to date, and the personal circumstances ongoing at the time, were not taken into account, this appeal was not upheld as Ms Comiskey found the Complainants actions to be in breach of the company honesty policy and the bond of trust that exists between him and the Respondent and that all evidence and circumstances were taken into account when coming to a decision on the matter. 

13.   In relation to appeal ground 2, where the Complainant wanted to repay the value of the goods taken (€9.45) and stated that he had carried out his own investigations with other staff members and alleged that the company was coming down harder on him than on others, this appeal was not upheld. Ms Comiskey found that, given the role and responsibility of the Complainant, in addition to them being fully aware of the policy in place, that appropriate action was taken on this breach, as is taken in all such breaches under the heading of serious misconduct.

14.   In conclusion, Ms Comiskey did not uphold the Complainant’s appeal. She found that the Complainant’s actions were a serious breach of policy and that the bond of trust that needs to exist between employer and employee had been broken beyond restoration.  

Respondent’s Position

15.   The Respondent places trust in colleagues to do the right thing for customers and the business. As a business that involves dealing with cash it is important that this trust is maintained throughout a colleague’s employment. This was not the case for the Complainant as his actions caused a breach of the bond of trust Tesco had placed in him. The Complainant was dismissed by reason of his own actions which were not denied and were considered as serious misconduct.  In accordance with Section 6(4) of the Unfair Dismissals Act 1977 – 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

16.   Having considered all the facts, the responses and explanations of the Complainant were not considered reasonable nor sufficient such as to mitigate the extreme seriousness of his actions. The Complainant’s actions amounted to gross misconduct whereby he was in breach of the Company Honesty policy on three separate occasions, with conduct qualifying as ‘theft or fraud or attempted theft or fraud if proven to the company’s satisfaction. Including: stealing by deception’ constituting serious misconduct under the Company Disciplinary policy. This is particularly pertinent as the Complainant has received the required training on the Disciplinary Policy, Colleague Purchase Policy and Company Honesty Policy.

17.   When considering what sanction to apply the Respondent had regard to the seriousness of the allegations and also the representations made by the Complainant within the process itself.

18.   In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

19.   It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.

20.   The actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. In Berber v Dunnes Stores Ltd [2009] ELR 61 the Supreme Court considered the types of conduct that may be considered to undermine the relationship of trust and confidence, Finnegan J holding:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

21.   This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that:

“[The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

22.   Furthermore, in the similar case of An Employer V An Employee ADJ-0000163923 the WRC found that:

“During the Hearing the claimant accepted that he took the food items without paying but he maintained that this was due to memory problems. At no stage could the complainant show other examples where he had memory problems of any substance. While I accept that the claimant has suffered as a result of losing his job I am of the view that as a result of the claimant holding a position of serious responsibility with the Respondent that the bond of trust has been irrevocably broken between the parties as a result of these incidents. One or two instances of “forgetfulness” may be forgivable and possibly understandable but in this instance, there were a number of instances. The claimant should have been under no illusion from his position and training with the company that the issues that lead to his dismissal would amount to gross misconduct. As a result I find that the claimants dismissal was fair and his claim is not well founded.”

23.   In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the allegations against him. He was afforded the right to representation. He was further provided with a number of fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action taken. In light of all of the above, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects. Notwithstanding that and without prejudice to the foregoing, if any argument is made about the procedural fairness of the Respondent’s procedures, it must be recalled that there was no dispute over the fact that the Complainant engaged in the serious/gross misconduct.

24.   The Respondent contends that the actions of the Complainant contributed wholly to his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978 where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.

25.   Notwithstanding the fact that it is the Respondent’s strong contention that no unfair dismissal took place, in the event that the Adjudication Officer were to find in favour of the Complainant, we would ask that the Adjudicator choose what is the most appropriate remedy in the circumstances and the preferred option is compensation.  It would not be reasonable to have the Complainant return back to the workplace in circumstances whereby there has been a fundamental breakdown in the relationship and the breach of trust between the parties. The Respondent respectfully submits that as compensation is the preferred remedy of both parties, the Adjudicator should respect this.

Conclusion

26.   The Respondent conducted a fair and impartial disciplinary process.  The Complainant’s actions amounted to serious misconduct, as defined by the employer and understood by the employee. Furthermore, his actions represented a fundamental breakdown in the trust relationship between the employer and employee. This misconduct goes to the root of the contract of employment because it serves to undermine the trust and confidence which is essential to the maintenance of the relationship between the employer and the employee.

27.   The Respondent respectfully requests that the Adjudicator find that the decision to dismiss the Complainant was justified and fair and that, accordingly, the present claim should fail.

The Complainant, as per complaint form, states that he has been unfairly dismissed from his job over incidents that totalled less than €10. In each case he had forgotten to pay for an energy drink before drinking it. On each occasion the store was not open, he had arrived very early before the store opened.

The Complainant at the time of these incidents was going through a very tough time in his personal life outside work which was causing hm to lose sleep. He also states that he was on the verge of being made homeless and he was under severe stress and suffering from lack of sleep and that he had a lapse in memory and forgot to pay for the items.

The Complainant contends that his work colleagues at that time would know that he always paid for his drinks each morning but on these three occasions he apparently did not pay.

The Complainant was unaware of his wrongdoing until the point of being called to a meeting in late October.

In relation to his dismissal the Complainant feels that he has been unfairly treated when compared to another staff member who has been involved in multiple incidents and has only been issued with warnings if even that. Such other incidents in relation to this other member of staff include the giving a bottle of spirits to someone she knew without scanning it, for free. The Complainant raised this matter with his line manager at the time. The offending employee was issued with a warning. On another occasion with the same member of staff was involved in several other incidents within a period of six months where they gave Clubcard points, 100 times the value they should have issued. This incident went to an investigation that resulted in the offending employee only being issued with a warning.

The Complainant contends that there is favouritism going on and does not know why he is being singled out.

When the Complainant raised this question during his investigation meeting and again at the disciplinary hearing, he was told that the investigation officer was not aware of those situations and it was not possible to speak of those outcomes despite having these issues raised at earlier meetings.

The Complainant contends that the actions of his colleagues are being swept under the rug while he has to face the full force of the disciplinary process for an arguably less severe infraction, and this leads the Complainant to believe that he has been unfairly singled out for one reason or another.

The Respondent’s representative has stated that in relation to procedures used by the Respondent:

In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the allegations against him. He was afforded the right to representation. He was further provided with a number of fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action taken. In light of all of the above, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects. Notwithstanding that and without prejudice to the foregoing, if any argument is made about the procedural fairness of the Respondent’s procedures, it must be recalled that there was no dispute over the fact that the Complainant engaged in the serious/gross misconduct.

There can be no doubt that the procedures followed were correct and that all such procedures align themselves to SI 146 / 2000 -WRC Code of Practice on Grievance and Disciplinary Procedures.

In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 (Appendix 20) is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

In the instant case my job as adjudication officer is not to decide the guilt or innocence of the Complainant it is to look at the procedures followed by the Respondent and was the decision made by the Respondent one which any reasonable employer would make.

The Complainant took an energy drink and failed to pay for this drink. This did not happen on one occasion but actually happened on three separate occasions within a fifteen day period i.e., 3rd , 8th, and the 18th of October 2021.

 I am of the view that as a result of the Complainant holding a position of serious responsibility with the Respondent that the bond of trust has been irrevocably broken between the parties as a result of these incidents. The claimant should have been under no illusion from his position and training with the company that the issues that led to his dismissal would amount to gross misconduct. As a result, I find that the Complainant’s dismissal was not unfair and his claim under the Unfair Dismissals Act, 1977 is not well founded.

I am of the view that as a result of the Complainant holding a position of serious responsibility with the Respondent that the bond of trust has been irrevocably broken between the parties as a result of these incidents. The claimant should have been under no illusion from his position and training with the company that the issues that led to his dismissal would amount to gross misconduct. As a result, I find that the Complainant’s dismissal was not unfair and his claim under the Unfair Dismissals Act, 1977 is not well founded.

Unfair Dismissal Act 1977. Gross Misconduct.