Complainant

Respondent

Parties

Gabor  Hoff

Lidl Ireland Gmbh

Representatives

John Monaghan BL Michael O'Donnell Solicitor instructed by   

Scott Jevons Employee Relations Manager

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-00055607-001

16/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055607-002

15/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055607-003

15/06/2023

The Complainant joined the Respondent retailer on the 1st of September 2008. He worked for them for 14 years and by the time of his dismissal on 16th December 2022 he had risen to the role of Deputy Logistics Manager. He worked in a regional distribution centre.

The Complainant was dismissed following a complaint made by a female member of staff as to a comment he made regarding the appropriateness having women carry out work in the distribution centre. The Complainant argues that this comment was made in a context of particularly heavy work this colleague was required to carry out in and in response to her raising the fact she had pulled a muscle.

At the time of his dismissal the Complainant was under final written warning for a separate issue. He had also received a verbal warning at the start of the year. 

The Respondent was represented by their Employee Relations Manager Mr Scott Jevons who made detailed written and oral submissions.

The Complainant had responsibility for managing staff as part of his role. He was on a final written warning following complaints of sexual harassment and gender-based discrimination. He had not appealed this sanction. He was sent for dignity at work retraining which occurred only weeks before he made further discriminatory remarks to two female colleagues. These remarks were to the effect women should not work in the distribution centre and he does not hire women.

After these remarks were reported to the Respondent. A fair process ensued and reasonably concluded the Complainant in fact had made these remarks. The Complainant’s evidence on these matters was unclear at best.

The sanction of dismissal was entirely proportionate and reasonable in the circumstances.

Mr Jevons presented a number of witnesses.

Janice O’Connell gave evidence under affirmation.

 She is a logistics manager working for the Respondent and carried out the investigation into the matter for which the Complainant was dismissed.

On the 2nd of November, Ms A an agency worker in the Respondent’s distribution centre requested a meeting with Ms O’Connell and another logistics manger.

Ms A relayed the comments made by the Complainant. It was alleged that he stated that the distribution centre was not a place for females to work as the work was too heavy and that he didn’t hire females for that reason.

Ms A was visibly upset when she reported this comment. She requested the meeting and made the statement of her own free will and she then put in a written statement as did her colleague Ms B who had been present when the Complainant said this.

After Ms O’Connell received these statements she initiated her investigation.

She met again with Ms A to go through the statement. She asked her how the comments made her feel to which she responded that they were hard to hear and she didn’t agree with them.

The Complainant was interviewed. He said he couldn’t remember saying such a thing but he didn’t mean any offense if he did.

She does not believe the statement was taken out of context. Ms A was offended by the allegations. In the first meeting she was visibly upset and had tears in her eyes. During the investigation meeting she found the comments hard to hear.

The Complainant generally wasn’t very convincing in the investigation meeting.

Ms O’Connell’s decision was to put the case forward for disciplinary action.

Ms O’Connell was cross examined by Mr John Monaghan Bl.

She confirmed she asked Ms A for a statement after they initially met.

Ms O’Connell stated that after the investigation started she meet with Ms A again before the Complainant. When Mr Monaghan pointed out the dates of the minutes indicated otherwise she wasn’t sure of the sequence. She had questions for each of them. 

Ms O’Connell does not believe that the investigation report indicates that the investigation was predetermined. She had the two handwritten statements and then initiated investigation to decide whether the comments were made.  She had decided the comments were inappropriate when she read them.

After meeting Ms A she believed she was upset and offended.

The Complainant did not have sight of the minutes of Ms A’s minutes during the investigation. There is no record of Ms A being upset in the initial meeting of the 3rd of November. The Complainant was not given the opportunity to cross examine Ms A.  

Ms O’Connell was cross examined on the minutes of the meeting and specifically her reasoning for determining Ms A was offended. Mr Monaghan points out she only says it was hard hear and this was on prompting from Ms O’Connell.

Mr Stephen Hasson gave evidence under affirmation.

He is a logistics director based out of the same regional distribution centre as the Complainant.

He was the disciplinary manager in this process. He has been trained in holding disciplinary hearings and has held this type of responsibility for over 6 years.

The Complainant was invited to a disciplinary hearing and given the opportunity to respond to the investigation report. At the hearing they discussed the expectations of his role and the fact he was in a leadership position.

He didn’t provide a clear account as to whether he made the statement or not. Mr Hassan didn’t find the Complainant to be credible and ultimately preferred the statements made by Ms A and Ms B.

The Complainant had a final written warning on file. This was for making suggestive comments to female colleagues. This concerned a number of comments about makeup, hair, appearance, weight, personal life. There was also a particularly unsavoury comment made by the Complainant which had featured in that disciplinary procedure.  

He felt there was track record. As a company Lidl take this very seriously. The Complainant had already recompleted dignity at work training. He held a line manager role. The seriousness of all that was on Mr Hasson’s mind.

He considered demotion or extending written warning as an alternative to dismissal. Ultimately, he was of the view that there had been a breakdown of trust. The Complainant had just been provided training before the incident occurred.

He determined that the Complainant should be dismissed.

Mr Hasson was cross examined by John Monaghan BL.

Mr Hasson believed that the Complainant’s behaviour was likely to cause offense and that Ms A was offended. She wouldn’t have come forward otherwise.

Mr Hasson also points out that he has an obligation above and beyond Ms A.

The Complainant was represented by Mr John Monaghan BL  who made written and oral submissions on his behalf.

There are a number of key failings in the Respondent process. The Complainant was investigated and dismissed for allegedly offensive behaviour to the colleagues. No one can point to any evidence that Ms A was offended. In the absence of any evidence to this point. The Complainant was not given sight of Ms A’s interview minutes until after the investigation. He was not allowed to cross examine Ms A.

The Respondent has shifted their position to focus on whether the statement was objectively offensive. This is not relevant or fair. The investigation started on the basis of the statement being offensive to two staff. The Respondent should have said that from the outset if they were investigating him for that. 

Mr Gabor Hoff gave evidence under oath.

He worked for the Respondent for 14 years.

He started as an operative working as a picker. Then was promoted to supervisor then deputy logistics manager.

He accepts the statement that Ms A submitted but does not believe it is 100% accurate. He thinks it was a misunderstanding. He didn’t say he wouldn’t employ women but he didn’t believe a picking job was ideal for women because it was too physical. He had experience in the past of female operatives came to him looking for other responsibilities.

When he was speaking with Ms A and B they were smiling and they understood his comments. He didn’t see any offense or negativity in their response. They didn’t express any offense. Ms A agreed with him and he was surprised when investigation started. They know each other.

During the investigation process he didn’t get an opportunity to comment on the meetings with Ms A. Mr Hasson didn’t give him the opportunity to address it either.

The background to the comment was that female operatives had been assigned to picking 24 packs of beer and found it too heavy and complained to him. The conversation with Ms A was the day after and they were discussing the fact she had recently been hurt.  

Since his dismissal he had run into Ms A who had said she wasn’t offended at all.

The Complainant was cross examined by Mr Jevons

He now accepts that he made those statements.  He had said he didn’t remember because he had a feeling he was being targeted. He wanted to get through the meetings and felt the conclusion would be the same.

He didn’t deny the statements but he said he couldn’t remember. He accepts that he could remember the interaction though not fully. He owned up to the statement in the disciplinary hearing.

He had worked as a picker previously and believed it was not ideal for women not that it was not appropriate. He believes his comments were taken out of context.  

He confirmed he recently received dignity at work training. He didn’t mean to discriminate but he does see how the statement could be discriminatory. He does not accept it was discriminatory in this case as he and Ms A knew each other.  

He believes management had a predetermined view of him. This is why he didn’t appeal the final written warning he received earlier in the year.  

Unfair Dismissals Act

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 b provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

In examining the reasons given for the Respondent’s decision to dismiss, i.e. the conduct of the employee, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take the place of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in his dismissal, but rather whether a reasonable employer might have reasonably dismissed him for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

The Complainant has subsequently obtained an email from Ms A which outlines that she was not offended by his remark. Aside from issues of evidence I am cognisant of the principal set down by the EAT in the well-known case of Looney & Co. Ltd. v Looney UD 843/1984  “It is not for the tribunal to seek to establish the guilt or innocence of the claimant …. Our responsibility is to consider against the facts what a reasonable employer in [the Respondent’s] position and circumstances at that time would have done and decided….”

Conclusions

In November 2022 it was reported to the Respondent that the Complainant had made comments to the effect that women shouldn’t work in the distribution centre and that he doesn’t hire women. While Ms A didn’t explicitly state she was offended she did complain about these statements.

The Respondent then conducted an investigation into these comments which was led by Ms O’Connell. The Complainant’s evidence was unclear and on balance Ms O’Connell accepted Ms A’s evidence in interview backed up by Ms B’s written statement and concluded that the comments were made as alleged. On review of the evidence I am of the view that that conclusion was entirely open to her to reach.

The Respondent did not give the Complainant the minutes of Ms A’s interview during the investigation however the Complainant did sight of the minutes at the disciplinary hearing.  I don’t think him having had the minutes earlier would have made any substantive difference and the Complainant was entitled to bring up issues related to those minutes at the disciplinary hearing.

Mr Monaghan for the Complainant has raised a number of issues related to question whether offence was caused to Ms A.  He points out that she never stated that she was offended. He also takes issue with the Respondent’s position that whatever the offense caused to Ms A, these were not appropriate comments for a manager to make. He suggests that this is moving of the goal posts and procedurally unfair.

On the issue of whether Ms A was offended or not, I think it was entirely reasonable to infer she was offended by the Complainant because she complained formally to management about what his is supposed to have said.

On the issue of moving goal posts, I have reviewed the correspondence in detail. The Respondent’s wrote to the Complainant from the outset of the investigation providing the following details of his alleged misconduct:

Alleged misconduct, specifically, offensive behaviour towards two work colleagues in the Lidl RDC Charleville on 20th October 2022. That on this day, when a female colleague pulled a muscle whilst working in the warehouse, you allegedly made inappropriate comments to two colleagues, one being the injured party, regarding the suitability of the working environment for a female.

As per Lidl’s Disciplinary Policy and Procedure, Section 4. Standards of Conduct, 4.1, Employee Responsibilities, Sub Section 4.1.1 Examples of Misconduct, list’s ‘Obscene language or other offensive behaviour likely to offend customers, suppliers, visitors or work colleagues.’ As an act that is considered serious enough to be treated as misconduct for the purpose of the disciplinary procedure

The alleged actions are also in contravention to Lidl’s Disciplinary Policy Section 4.1.1 Employee Responsibilities specifically the responsibility to ‘ensure that you understand and follow the company policies, procedures and principles and act at all times in good faith and in the best interests of the Company’.

I am satisfied that the above notice encompasses not just the fact that Ms A may have been offended but that the comments in of themselves were unacceptable to the Respondent and in breach of their polices.

More generally I would note that internal disciplinary processes are not akin to criminal charges. Once a person is put on notice as to the alleged facts under investigation that will normally be sufficient.

The final issue to consider is whether the Respondent, having established, in a substantially fair process, that the Complainant had said that women should not work in the distribution centre because of the physical nature of the role and that he doesn’t hire women for that reason, was entitled to dismiss the Complainant.

Having regard to the wider context of the Complainant being on a final written warning for inappropriate, gender related, comments and having only recently been sent for training on the Dignity at Work policy I am satisfied that the decision to dismiss was within the above-mentioned band of reasonableness.

CA-00055607-001

For the reasons stated above the complaint is not well founded.

CA-00055607-002

The Complainant failed to advance a case under this complaint and as such I conclude it is not well founded.

CA-00055607-003

The Complainant failed to advance a case under this complaint and as such I conclude it is not well founded.