UDD2310

1.Appeal of Adjudication Officer Decision No(S)ADJ-00034169, CA-00045130-001

For ease of reference Aldi Stores (Ireland) Limited will be referred to in this decision as the Respondent and Cameron Scott will be referred to as the Complainant.

Background

The Complainant was employed by the Respondent from 6^thJanuary 2020 until his dismissal on 20^thMay 2021 without notice for gross misconduct.

The uncontested events underlying the dismissal are that the Complainant had taken food or drink products and had not paid for the products as follows:•On 25^thNovember 2020 - Toasted sandwich and energy drink

•On 26^thNovember 2020 – Bottle of water and coffee drink

•On 1st December 2020 – Flat Bread sandwich and energy drink

•On 2^ndDecember 2020 – Energy drink

•On 6^thJanuary 2021 – Bottle of orange juice

•On 10^thJanuary 2021 – Bottle of water

•On 14^thJanuary 2021 – Bottle of water

It was uncontested at the hearing of the Court that the employee handbook was part of the contract of employment of the Complainant and that the handbook sets out

•a non-exhaustive list of circumstances which would warrant summary dismissal and, in that list, expressly refers to“theft of stock or property, even of the smallest amount, which belongs to the Company, an employee of the Company, or to a third party on Company property”.

•examples of the type of conduct which could lead to disciplinary action up to and including dismissal including“theft of stock or property, even of the smallest amount, which belongs to the Company, and employee of the Company, or a third party on Company property”

•that“using obscene and abusive language” is conduct which“if serious enough, may amount to gross misconduct warranting dismissal without notice”.

Summary position of the Respondent

The Respondent submitted that, having regard to the Act at Section 6(1), there were substantial grounds justifying the termination of the Complainant’s employment and that it had acted reasonably and fairly in effecting the dismissal.

There was no dispute with the Complainant as regards the allegation of removal without payment of food and drink products on the dates specified. Neither was there a dispute that abusive language had been used by the Complainant on 14^thJanuary 20121 although the Complainant contended that such language was directed at one rather than two managers who were present on the occasion. He also disputed the use of certain language in that instance.

The sanction of dismissal was not outside the band of reasonable responses to the Appellant’s conduct that might be expected of a reasonable employer.

The Respondent submitted that the role of the Court in the within appeal is not to substitute its views for those of the Respondent but rather to determine whether there were substantial grounds justifying the dismissal and whether the response of the Respondent to the conduct of the Appellant was within the band of responses which might be expected of a reasonable employer. In that context the Respondent referred the Court to  Foley v Post Office [2000] ICR 1283and   O’Riordan v Great Southern Hotels UD 1469/2003. The Respondent also drew the Court’s attention to the decision inLooney and Co v Looney UD 843/1984. The Respondent also referred to the decision of the High Court in Governor and Company of the Bank of Ireland v Reilly [2015] ELR 229where the High Court stated

• That is however not to say that the Court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned….

The Store Manager checked the CCTV footage for each shift the Complainant had worked since November 2020. On seven occasions in the period to 14^thJanuary 2021 the Complainant had taken product when he was working an early shift before the tills opened at 9.00am and on only one occasion did he pay for the product he had taken.

On 14^thJanuary 2021 the Store Manager and the Assistant Store manager asked the Complainant to come to a meeting in the Store offices. At that meeting the Store Manager confirmed that he had reviewed CCTV footage and had identified a number of occasions where the Complainant had taken product without paying for it. The Complainant responded to say that he would ‘pay the difference’ but the Store manager stated that it was more serious than that.

During the meeting the Store Manager showed the Complainant CCTV footage of one of the incidents and asked him to explain what had happened. The Complainant said he forgot to pay.

The Complainant asked if he was ‘sacked’ but the Store Manager replied that he was not. The Store manager informed the Complainant that he wanted to find out what had happened. He also told the Complainant that he could choose to leave the employment but that he, the Store Manager, would be referring the matter to the Area Manager under the disciplinary procedure and that the disciplinary procedure could ultimately result in dismissal.

At that stage the Complainant became very annoyed, raised his voice and used swear words and stormed out of the office. The Store Manager followed him and informed him that if he was leaving the employment, he would have to submit a letter of resignation.

The Complainant walked to a checkout, picked up his jacket, gave his green employee key to the Store Manager and collected his bag from the canteen. The Store Manager again requested that the Complainant write a letter of resignation and the Assistant Store Manager asked the Complainant to return and talk about the matter. He responded saying ‘fuck you, you fucking pricks’ and left the store.

A disciplinary process was conducted by the Respondent’s Area manager, Mr W. A hearing took place on 12^thFebruary where the Complainant did not dispute the fact that he had taken products without paying for them, but he contended that on each occasion he intended to pay for them.

He also set out that he suffered from certain mental health conditions which required medication and that a side effect of the medication was forgetfulness. He provided a note from his doctor which set out his medication and which stated that one of the side effects of these medications is forgetfulness.

In light of the health issues which had been raised, the Respondent referred the Complainant to an occupational healthcare provider. The Doctor’s report which followed that referral stated that a history of forgetfulness had not previously been the subject of medical investigation, that he had been on such medication for many years and no criticism or observations had been made in the workplace to suggest any underlying impairment.

The occupational health provider’s doctor confirmed that he was not persuaded that a repeated failure to pay for goods could be attributable to his medication.

In light of this doctor’s report Mr W. interviewed the Store manager and the Assistant Store Manager who both confirmed that they had not encountered any issues with the Complainant being forgetful at work.

Mr W. invited the Complainant to a further disciplinary hearing, and, in that correspondence, he provided the Complainant with notes of his meetings with the Store Manager and the Assistant Store Manager together with the report of the doctor from the occupational health provider. That second disciplinary hearing occurred on 25^thMarch 2021.

At this meeting the Complainant indicated that his condition as distinct from his medication was the cause of his forgetfulness. Arising from that assertion, Mr W arranged for a further attendance by the Complainant at the occupational health provider’s doctor. The doctor’s report confirmed again his opinion that the Complainant’s failure to pay for goods on repeated occasions stood.

Mr W wrote to the Complainant following receipt of the doctor’s further report and invited him to attend a further disciplinary meeting. With that letter he included the latest report from the doctor together with further copies of all relevant documentation. At that meeting on 14^thMay 2021 the Complainant was accompanied in accordance with the procedures of the Respondent and he was invited to respond to all documentation and the case against him.

The Complainant was invited to a disciplinary outcome meeting with Mr W. on 20^thMay 2021 at which he was provided with a letter which confirmed that he was to be dismissed for gross misconduct with effect from 20^thMay 2021. As Mr W was reading the letter to the Complainant at the meeting the Complainant stood and said‘I’ll see you in fucking Court’and left the room with his companion.

The letter advising the Complainant of his dismissal also advised him of his right to appeal the decision and provided him with details of the means to make an appeal. The Complainant did not avail of an appeal.

The Court asked the Respondent’s representative to clarify whether it was the case that notwithstanding an allegation that he had been responsible for taking goods without paying for them on 6^thJanuary, that he had remained at work without restriction, including in the tills, until his ultimate dismissal in May. It was confirmed that the Respondent, having regard to the decision of the High Court in  The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241,did not regard it to be appropriate to suspend the Complainant before conducting a disciplinary process. In addition, it was asserted that it did not regard the possibility of theft from the tills as a major risk having regard to the processes in place in the store.

Summary evidence on behalf of the Respondent

Evidence of Mr B, Assistant Store Manager.

Mr B, Assistant Store Manager, gave oral evidence on behalf of the Respondent.

He said that he had a normal working relationship with the Complainant. He said that he had raised with the Complainant that his performance in certain areas of work was only 30% to 40% of what it should be and that he had brought that to the attention of the Complainant on occasion.

He said that at the material time the Complainant worked on the early shift which means that he commenced work at 6.00am at a time when the tills are not open. He said that four or five staff work that shift and if a staff member wants product before the tills open, they would ask the manager for clearance to do that and would pay for the item after the tills open. When they do pay for such product another staff member operates the till.

On the 6^thJanuary 2021 he observed the Complainant with orange juice which was a product of the Respondent. After a break he looked at the CCTV recordings and saw that the Complainant had not paid for the product. He advised the Store manager of this occurrence.

The Store manager asked him to attend a meeting with the Complainant because he did not want to attend that meeting alone. He asked the Complainant to attend such a meeting and the Complainant was shocked.

At that meeting the Complainant asked the Store Manager ‘what happens next’ and the Store manager advised him that he could resign or the matter will be passed to the area manager. At that point the Complainant called the Store Manager and the witness ‘pricks’.

Under cross examination he stated that he had never observed forgetfulness on the part of the Complainant.

In response to a question from the Court the witness confirmed that he checked staff transactions on three or four occasions per month to ensure that product was always paid for.

The Complainant, in cross examination of the witness, asked him if he regards an error which had occurred with respect to ‘carding’ as forgetful on the part of the Complainant. He stated that he did not regard this error as forgetfulness.

Evidence of Mr W – Area Manager.

Mr W said that he knew the Complainant to see prior to his involvement in the within matter. He had occasion to chat to him once when the matter of a knee injury was discussed. He said that he never observed the Complainant to be forgetful.

There was a clear policy of zero tolerance for theft in the Respondent employment. He been made aware in January 2021 by the Store Manager that he, the Store Manager, had become aware of issues with the Complainant consuming goods from the store and possibly not paying.

On 2^ndFebruary 2021 he wrote to the Complainant to invite him to a disciplinary hearing to be held on 12^thFebruary. With that letter of invitation he enclosed the Complainant’s contract of employment, his job description, a record of the Complainant’s acceptance of the company handbook and a copy of that handbook, a statement from the Store Manager in relation to the incident, a statement from the Assistant Store Manager in relation to the incident, CCTV footage of the alleged incidents and a document setting out a timeline of the incidents and a description of the CCTV footage.

At the meeting on the 12^thFebruary 2021 the Complainant, who was accompanied, agreed that he had not paid for the goods on the occasions and accepted that he had used abusive language on 14^thJanuary 2021 as alleged. He said that sometimes he gets forgetful and that he intended to pay on each occasion when he did not pay but forgot to do so.

The Complainant read a statement at that meeting setting out that he suffered from a mental health condition which caused him to be forgetful. He also clarified in that statement that he had not directed his abusive language on 14^thJanuary at the Store Manager but rather at the Assistant Store Manager alone.

At that meeting he also provided a note from his GP which stated that he was prescribed certain medications and that a side effect of those medications was forgetfulness.

A note was drawn up of the meeting and that was signed by both the witness and the Complainant as accurate.

In light of the medical issues raised, Mr W referred the Complainant to Medmark Occupational Healthcare. A doctor for that service engaged with the Complainant and provided a report on 3^rdMarch saying that he was not persuaded that the repeated failure to pay for goods, arising as a sole observable manifestation of forgetfulness, can be attributed to his medication.

At a second disciplinary hearing on 25^thMarch the Complainant referred to his forgetfulness as being a side effect of his condition as distinct from his medication as had been suggested by his GP. On foot of that information the witness again arranged for the Complainant to engage with the Medmark doctor. In his second report which was provided on 21^stApril 2021, the doctor confirmed that his first opinion stood.

A third meeting was held on 14^thMay at which the Complainant, who was accompanied, was provided with an opportunity to respond to the second report of the Medmark doctor.

The witness called the Complainant to an outcome meeting on 20^thMay 2021 at which he was advised of Mr W’s decision to dismiss without notice for gross misconduct involving multiple occasions of removing product without paying for same and for using abusive language as alleged. The witness stated that, in light of the medical advice provided, he did not accept the explanation provided by the Complainant. In light of the clear policies of the Respondent his decision was that dismissal was the appropriate decision. He stated that he considered alternative sanctions but, having regard to significance of the matter as outlined in the Complainant’s contract of employment and accompanying handbook, he decided that dismissal for gross misconduct was the appropriate sanction in this case.

The Complainant chose not to cross examine this witness.

Summary position of the Complainant

The Complainant submitted that he suffered from a mental health condition for which he is prescribed medication and that one of the side effects of that medication is forgetfulness.

On the 14^thJanuary 2021 he was called to a meeting with the Assistant Store Manager and the Store Manager. At that meeting it was pointed out that he had taken food and soft drink products on numerous occasions and had not paid for them. He was mortified and offered to pay for these goods. He explained at that meeting that it was not intentional and that he would pay for the goods. He was told that he would not pay for them and could resign, or he would have to attend a disciplinary hearing and would lose his job anyway.

This response caused him to be anxious and overly stressed and said to the managers ‘fuck this I don’t need this shit’

The Complainant submitted that all of his four team mates on the early shift take goods from the shelves when they are going on their break and pay for it later. He felt that the Assistant Store Manager did not like him and was conducting a witch-hunt.

He submitted that the disciplinary hearings were stressful to him and during the process of disciplinary hearings he was put on the busiest till every day for a few months. Such an approach was not consistent with a suspicion of theft on his part.

Relevant law

Section 14 of the Unfair dismissals Act 1977 in relevant part provides as follows:

• 14.—(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal. ]

• 6.(1) 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.

  (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:

  (b) the conduct of the employee,

Discussion and conclusions

In this case the conduct of the Complainant is not disputed and therefore the question to be considered by the Court is whether the Respondent’s decision to dismiss falls within the range of responses which might be expected of a reasonable employer and whether the procedures employed to reach such a decision were fair.

There has been no submission from the Complainant that the procedures employed by the Respondent were unfair or in any way inconsistent with the procedures outlined in his contract of employment of the Respondent. He has submitted that the Store Manager, at a meeting on 14^thJanuary 2021, had advised him that he could resign his employment or face a disciplinary procedure which could result in the termination of his employment. The Respondent does not contest that a remark to that effect was made by the Store Manager and indeed the evidence of the Assistant Store Manager supports the proposition that remarks to that effect were made by the Store Manager on the occasion.

The Court therefore concludes that the Store manager did make remarks of this character at the meeting. The Respondent submitted that any such remarks were unwise on the part of the Store Manager. Taking note however of the fact that the Store Manager was not a decision maker in the disciplinary procedure, the Court is not of the view that this exchange, while disconcerting for the Complainant, was not indicative of pre-determination by the Respondent prior to commencement of a disciplinary process and consequently not fatal to the procedures subsequently employed by the Respondent and executed by Mr W.

It is not disputed that the incidents which formed the basis for a disciplinary procedure to be initiated by the Respondent occurred. The evidence given to the Court by the Respondent’s witness, and not disputed by the Complainant, was that the Complainant had at all times accepted that he had removed product from the Respondent’s store and failed to make payment in respect of those goods. Neither is it disputed that he offered reasons for his conduct based on forgetfulness arising from his medical condition and / or the medication prescribed for him in relation to that condition.

The sole area of disputation between that parties is the contention of the Complainant that his undisputed behaviour occurred as a result of a medical condition and or the side effects of medication for that condition which resulted in forgetfulness.

The Complainant provided the Respondent with a note from his own doctor advising of the Complainant’s medical condition and of the medication which he was receiving. That note simply stated that a side effect of that medication is forgetfulness. The note did not state that the Complainant himself suffered from this side effect. Neither did it state that the condition from which the Complainant suffered could, itself, could result in forgetfulness. albeit the Complainant at one point in the disciplinary procedure asserted that such could be the case.

The Respondent asked the Complainant on two occasions to attend a doctor associated with an occupational health service so that matters associated with his medication and medical condition which he had raised could be assessed. On both occasions the doctor advised the Respondent that he could not conclude that the Complainant’s behaviour could be accounted for by forgetfulness associated with his medication or his condition.

It is not for the Court to put itself in the place of the employer in the within case. Rather the role of the Court is to determine whether the actions of the employer fall within the range of actions which a reasonable employer would take in the circumstances.

This approach was explained byDonaldson L J in Union of Construction Allied Trades and Technicians v Brane [1981] IRLR 224 (Court of Appel for England and Wales) in the following terms:

• “It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”

• “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. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may have dismissed him”

• [T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.

• “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6 (4) which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employers conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that employer The question rather is whether the decision to dismiss is within the range of reasonableness responses of a reasonable employer to the conduct concerned -see Royal Bank of Scotland-v-Lindsay UKEAT/0506/09/DM.”

The Court has considered the uncontested underlying events giving rise to the decision to dismiss in this case. The Court is satisfied that the conduct of the Complainant set against the policies of the Respondent and the contract of employment of the Complainant, could reasonably be regarded as sufficiently grave as to give rise to serious disciplinary sanction.

The Court has also considered the procedures invoked by the Respondent in this case and has found that the disciplinary processes employed by the Respondent were fair and were conducted appropriately.

In essence, the decision maker was required to consider the Complainant’s undisputed conduct and to weigh a brief statement from the Complainant’s GP which did not go so far as to say that the Complainant himself suffered side effects from his condition or from the medication which he was prescribed in that context. In addition to this material, the decision maker had available to him two reports from another doctor which addressed the question as to whether the conduct of the Complainant could be attributed to his condition and / or his medication. Those two reports from that doctor were to the effect that no such medical conclusion could be drawn.

Against the background of those circumstances and factors it is the conclusion that there were substantial grounds justifying the dismissal of the Complainant and that the response of the Respondent, which was to dismiss the Complainant, was within the range of responses which could reasonably be expected of a reasonable employer.

The Court therefore concludes that the dismissal of the Complainant was not, within the meaning of the Act, unfair.

Decision

In all the circumstances, and having regard to the foregoing, the Court finds that the Respondent had substantial grounds to justify the dismissal of the Appellant. The appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
28 February 2023	Chairman