Complainant

Respondent

Parties

Elizabeth  Quinn

Tesco Ireland Tesco

Complainant

Respondent

Anonymised Parties

Representatives

Jim Fuery Mandate Trade Union

Niamh Ní Cheallaigh

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-00050560-001

10/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00050560-002

10/05/2022

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 and has submitted that following an investigation and disciplinary process she was unfairly dismissed (CA-00050560-001);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 and has submitted that she did not receive the appropriate payment in lieu of termination of her employment (CA-00050560-002);

Much of this evidence was in conflict between the parties and I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute.  I can confirm I have fulfilled my obligation to make all relevant inquiries into these complaints.

The Complainant commenced employment with the Respondent on the 5th October 2006.  The Complainant was employed as a general assistant and was contracted to work 35 hours per week and was paid €13.49 per hour, €472.15 gross per week. The Complainants employment was terminated on the 10th December 2021 following a disciplinary process.

The Complainant was suspended on the 27th August 2021 following a complaint by a customer in relation to the Complainants behaviour towards her at the checkout. An investigation ensued and following a number of meetings a decision was made to proceed to a disciplinary hearing.

The Complainant attended disciplinary hearings on the 15th October 2021 and the 12th November 2021. The Complainant submitted  there was no opportunity to question witnesses at either meeting. Further, the Complainant had highlighted there was a conflict between the accusers account, a witness account and the CCTV of the alleged incident. Ultimately, the Complainant attended a disciplinary meeting on the 10th December 2021 and was informed that her employment was terminated on the grounds of serious/gross misconduct.

The Complainant was eventually furnished with a dismissal letter, following representation by her union, and she then appealed the decision on the December 20th 2021 on four grounds which included that the case against the Complainant was not proven during the investigation or the subsequent disciplinary hearing, the punishment was severe and unfair given all the circumstances outlined, the length of the process was excessive  and the Respondents  procedures were not adhered to in administering the dismissal sanction. The Complainants appeal was rejected and the decision to dismiss the Complainant was upheld. The Complainant then referred this matter to the Workplace Relations Commission.

In relation to the  first Complaint, the Complainant submitted that the Respondent failed to afford the Complainant the opportunity to question her accuser and witnesses during the investigation and disciplinary processes and thus nullified her right to defend herself. Further, the Respondent failed to afford the Complainant the principles of natural justice and fair procedures throughout the process, failed to consider the Complainant’s medical condition and  failed to consider any alternative action short of dismissal.

In relation to the second Complaint,  the Complainant submitted she was entitled to a 8  week minimum notice period and this would equate to €4,163.60.

The Complainant secured alternative employment on the 20th December 2021 as a canteen assistant.

This Complaint was received by the Workplace Relations Commission on the 10th May 2022.

The Respondent accepts the background facts and the timeline in relation to the Complainant’s employment and the subsequent investigation and disciplinary process.

The Respondent submitted that that the sanction of dismissal was wholly justified given the Complainants breach of procedures which included  conduct which brings a company’s  good name into disrepute, rudeness or ill treatment of customers at any time and the breach of the code of business conduct under the heading of unacceptable behaviour.

In particular, in arriving at the decision to uphold the Complainants dismissal the Respondent took into account that the Complainant had previously received a final  written warning for similar behaviour which was live during the time this incident occurred.

The Respondent submitted that the dismissal of the complainant was procedurally as well as substantively fair, they adhered to fair procedures and the company policy on grievance and disciplinary procedures and the universal principles of natural justice at all times prior to dismissal.

It is the Respondents position that the actions of the Complainant contributed fully to her dismissal by reason of serious/gross misconduct and the decision to dismiss was fully justified.

In relation to the second complaint pursuant to the Payment of Wages Act, the Respondent submitted that they are not required to provide a Complainant with payment in lieu of notice where there is a  situation of serious/gross misconduct as per the Respondents disciplinary policy and in line with section 8 of the Minimum Notice and Terms of Employment Act.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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 or qualifications of the employee for performing work of the kind which 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 continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act  1977 which provides

“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”

Accordingly, the burden of proof lies with the Respondent to show that the Complainant’s dismissal was fair. In formulating a decision in the particular circumstances of this case, I am cognisant that in my role as Adjudication Officer, I must not assume the mantle of an employer regarding the facts in any case. My role is to decide whether, within the so called band of reasonableness of decision making, an employers decision is not unfair. The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd -v- Swift (1981) IRLR 91. The band of reasonable response test was articulated by Lord Denning, MR:

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

Further, in Bunyan -v- United Dominions Trust (1982) ILRM 404, the EAT endorsed the view that “the 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 has been taken and our function is to test such decision against what we consider the reasonable employer would have done and or concluded”

The Labour Court, recently citing Bunyan with approval has confirmed the applicability of the British Leyland Test in O’Brien -v- Dunnes Stores Limited UDD 1714. However, the Labour Court also stated in Morey -v- Dromina Community Playground UDD1715, that

“if the decision to dismiss was not within the range of reasonable responses then there cannot be substantial grounds justifying the dismissal.”

In the particular circumstances of this case, I note that the Complainant had been an employee of the Respondent since 2006 and would have been aware of the practices and procedures of the respondent had in place in relation to customer service. Further, it is noteworthy that the Complainant had a final written warning live on her record for similar misconduct. In consideration of the above, I prefer the evidence of the Respondent and, on the balance of probabilities, I find that the behaviour of the Complainant effectively amounted to serious/gross misconduct.

 Accordingly, the decision to dismiss the Complainant was within the range of a reasonable response by the Respondent and there were substantial grounds justifying the dismissal of the Complainant. Further, as the Complainant was dismissed for serious/gross misconduct no payment of lieu in notice was required and in that regard I considered Callaghan -v- Omniplex (Cork) Limited (ADJ-00029574.

I find that the Complaint (CA-00050560-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977, is not well founded.

I find that the Complaint (CA-00050560-002) made pursuant to Section 6 of the Payment of Wages Act, 1991, is not well founded.