Complainant

Respondent

Parties

Jakub  Mikula

Lidl Ireland Lidl Ireland GMBH

Representatives

Scott Jevons, Employee Relations Manager

Adrian McAdam, Witness and Investigator

Cosmin Abraham, Witness

Ross Ward, Witness & Disciplinary Officer

Andrew Griffin, Witness & Appeal

Roisin Grogan, Store Manager

Mayara Langro, Holmes Solicitor

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-00050540-001

05/05/2022

The Respondent confirmed their company name is correct as outlined by the Complainant i.e. Lidl Ireland GmbH.

There were some initial issues regarding correct notification of the parties prior to the hearing however the parties were then all notified correctly by the WRC and the hearing took place on 27 February 2024 and all the parties attended.

All witnesses took an affirmation. An Interpreter on behalf of the WRC who attended the hearing also took an affirmation.

I explained the hearing was being held in public and the parties would be named and are required to take an affirmation or oath and I explained the consequences of giving false evidence.

The Complainant, Mr Jakub Mikula stated he was unfairly dismissed for alleged gross misconduct on 15 November 2021.

The Complainant stated on 13 October 2021 he received an email saying he had to attend an investigation meeting in Lidl Baldoyle on Monday 18 October.

The Complainant stated on 15 October 2021 he completed the incident statement regarding a work injury that happened on 9 October in the workplace.  He stated he received a call from Adrian McAdam about rescheduling the meeting.

The Complainant stated on 27 October 2021 he attended the investigation meeting.  He confirmed that Adrian McAdam chaired the meeting.  He confirmed the parties who attended the meeting.

The Complainant stated on 29 October 2021 he received the report of the investigation into the alleged gross misconduct in the Lidl Baldoyle store.

The Complainant stated on 29 October 2021 he received an email with an invitation to the “Investigation Outcome and Disciplinary Hearing”.

The Complainant stated on 22 October 2021 he sent an email stating that he wished to appeal the decision.  He stated he received an email with an appeal form with a statement and had 7 days to reply.

The Complainant stated on 24 October 2021 he sent back the completed appeal form.

The Complainant stated on 11 November 2021 he received an email from Ross Ward saying he paused the process because he was on holiday.

The Complainant stated on 29 November 2021 he received an appeal acknowledgement email from Emma Cummins about organising the appeal meeting.

The Complainant stated on 10 January 2022 he sent an email to HR about the dismissal appeal and the fact that LIDL didn’t contact him for 3 weeks.  Since he had the accident at work, he also mentioned that his doctor’s certificate was given to his manager. He stated she asked “why do you give me this, I don’t need it” as if I was already fired.

The Complainant stated on 20 January 2022 he attended the appeal meeting. 

The Complainant stated on 25 January 2022 he sent an email to the company asking for the response on the appeal meeting.

In relation to the loss related to this claim the Complainant confirmed he finished work on 15 November 2021 and said he didn’t work since that.  He stated he didn’t do tiling as secondary job during his time with Lidl.  He stated he told people he did tiling before working with Lidl.  He stated he hasn’t worked since his termination as he was unwell and unavailable for work.  He is on sickness illness benefit and now job seekers benefit. He stated he went on illness benefit from 9 October 2021 since before his dismissal.

The Complainant was asked did he do any tiling work since finishing with Lidl, he said he did no work.

The Respondent asked the Complainant did he understand that on the basis he was unavailable for work and on sick leave the maximum he can receive is 4 weeks wages even if his case was successful and the Respondent acknowledged that and said he didn’t want to be dismissed and that’s the reason for the case.

The first witness was Cosmin Abraham. He stated he has worked with Lidl for 4 years.  He stated he was the Duty Manager when this incident occurred.  He stated on the date of incident he woke up late and when he arrived Jakub (the Complainant) started shouting at him and called him Romanian names and he was an “idiot” in an aggressive way and on his way through the store to the canteen he continued to follow him and call him these names and he lifted his hand above his head and he was very angry and thought he was going to hit him.  He stated it lasted 5 minutes.  He stated he was terrified and has impacted on his self-confidence and he feels bad when he remembers it. He stated it was witnessed by others.  He stated there is no camera in the canteen. He stated he feared a lot for his safety.  The Complainant had no questions for this witness.

The next witness was Roisin Grogan, and she was Store Manager of the relevant store at the time of the incident for 5½ years.

Ms Grogan stated she was aware he had a second job tiling outside of work as he told her this.

Ms Grogan stated when she arrived at work Jakub’s (the Complainant) car wasn’t there, so she thought she was down a sales assistant. She stated she met Cosmin and he told her what happened, and he said Jakub was packing but when she went to check he wasn’t there and she was told he had left.  She stated he didn’t tell anyone in responsibility he left the store.  She stated she checked CCTV and saw that Cosmin was late and saw that the Complainant went right up next to Cosmin and he remained up close to him and you can see the Complainant leaning over him and talking to him.  She stated that went on for 4 mins but there was no CCTV after that inside. She stated it seemed to be an emotional attack and Cosmin was shaken by the incident.  She stated she believed Cosmin’s account of incident.

The next witness was Adrian McAdams.  He has 9 years as Sales Operations Manager, and he was Investigations Manager. He was trained reference investigations.  He stated that Roisin the Store Manager contacted him to tell him what had happened.  He stated he asked Roisin to get statement from Cosmin Abraham and any other witnesses.  He stated Roisin received a statement from Cosmin Abraham, but the other witnesses refused. He stated he viewed the CCTV and couldn’t talk to the Complainant as he was out of work.

Mr McAdams stated in the investigation he asked Jakub Mikula, Complainant to take him through his version of the incident and to comment on Cosmin Abraham’s statement. He stated that Jakub said he only called him in idiot.  He stated when asked if this was appropriate Jakub stated we’ve good and bad days.   He stated that Jakub did not accept he said some of the allegations.  He stated he was vague reference the recollection and confirmed he was angry.  Mr McAdams stated the Complainant wasn’t convincing or remorseful.  He stated his decision was to proceed to disciplinary.

Ross Ward was the disciplinary Manager in this matter.  Mr Ward stated he was trained reference disciplinary.  He stated he has carried out more than 25 disciplinary hearings.  He stated he was issued reference summary investigation and policies and invited the Complainant to the meeting, and he had an interpreter with him. He stated that the Complainant said he didn’t understand the investigation notes and he gave him time to review with his interpreter. He stated he found the Complainant evasive at the meeting and his evidence wasn’t credible. Mr Ward stated the outcome of the meeting was he felt it was a severe incident and he didn’t feel the employee showed remorse and he said he couldn’t tell if it would happen again as he had good and bad days. He stated he decided to terminate the employment based on these factors.

Andre Griffin was the Appeals Officer and he stated he had been training in this role.  He stated the meeting was hostile and stated the Complainant had an interpreter with him. He stated he didn’t uphold the appeal as there was no evidence to overrule what he saw it as a very serious incident.  He stated there was a lack of remorse.

I gave the Complainant an opportunity to cross examine all the witnesses.

The Complainant stated he only called him a “fxxxing idiot”.  He stated he didn’t raise his hand he was just showing him his watch.   He stated he repeated that comment two or three times but was unsure where he said that. The Complainant stated he was going to the canteen.  He stated the route to the canteen from outside is only 30 seconds.  He stated he went too far but he shouldn’t have got fired and other people said similar comments.

The Complainant stated it’s like brothers disagreeing.  He stated he agrees that everyone should come to work free of bullying and he accepted he insulted Cosmin that day and he went too far.

The Complainant stated he would have said he did tiling which wasn’t employment he was just helping people.

The Complainant stated he didn’t block the door to the canteen and wasn’t trying to intimidate him.  He was once again apologising.

The Complainant stated he apologised after the first meeting to Cosmin.

The Complainant stated the evidence he gave at the meetings after the incident were true and he stated he didn’t call him the extra names.

The Complainant stated if Cosmin wasn’t late the incident wouldn’t have happened and he expected to get a second chance as the incident wouldn’t ever happen again.

The Respondent, Lidl Ireland GMBH stated the fact of dismissal is not in dispute. They stated the Claimant was dismissed due to a serious incident involving racial abuse and the threat of violence.

They stated he was employed from 3 December 2012 to 15 November 2021.

The Respondents put forward their position:

1.       The Respondent stated racial abuse and the threat of violence are both bases in themselves for summary dismissal for gross misconduct. They stated they are unacceptable in Lidl Ireland or any reasonable employer.

2.       The Respondent stated whilst the Claimant may deny all of the allegations occurred, the Respondent submits that on the balance of probability; it is more likely than not that the incident occurred in the manner described. They stated this will be evidenced by Mr. Abrahams account, and Ms. Roisin Grogan’s account of her meeting with him directly after

3.       The Respondent stated the Claimant by his own admission confirms some of the allegations around verbal abuse and claims a misunderstanding on the intent of his physical action (re the threatening gesturer alleged)

4.       The Respondent stated under the Safety, Health and Welfare at Work Act 2005 there is an obligation on Lidl to ensure both the psychological and physical safety of all our employees in the performance of their duties. They stated everyone has the right to attend work free from concern for verbal abuse, harassment, or indeed threat of assault

5.       The Respondent stated there is no reason for Mr. Abraham’s to have made up the racial element to the abuse nor the threat of violence. They stated e has been clear and certain of his recollection and evidence all the way throughout

6.       The Respondent stated the Claimant has been unclear in his evidencing, not remembering what he said fully (according to him). They stated he has however admitted to using insulting behaviour.

7.       The Respondent stated witnesses will provide evidence as to the Claimants aggression and hostility during their respective stages of the process

8.       The Respondent stated fair procedures were applied through investigation, disciplinary and appeals stages.

9.       The Respondent referred to ADJ-2894 of 2016 stating it is comparable; a fare inspector dismissed for an alleged act of aggression/violence (this time against a member of the public) – dismissal held to be ‘not unfair’. They stated the Claimant, in this matter, claimed he raised his arm but did not hit the complainant. They state however, the decision holds persuasive the witnesses’ evidence and found the Claimants doubtful.

The Respondent stated they are on notice the Claimant worked secondary employment as a tiler at the point of his cessation of employment.

The Respondent has correspondence on 18 August for complete details on loss; no response was received.

The Respondent stated the Claimant, in his own words on his Complaint form: “problems with my leg make it difficult for me to find a new job”. The Respondent stated therefore submits there is no financial loss arising from the dismissal.

The Respondent stated notwithstanding this dismissal was a ‘not unfair’ dismissal; should the adjudication officer find the dismissal to be ‘unfair’ it is submitted by the Respondent that the Claimant has contributed fully to his dismissal and therefore no compensation is appropriate.

I am going to consider the allegation of Unfair Dismissal in line with Section 6(1) of the Unfair Dismissals Act 1977 which provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(a) of the 1977 Act provides that;

“…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 …the capability, competence of qualifications of the employee for performing work of the kind he was employed by the employer to do.”

A number of judgements were considered by the Adjudicator in arriving at my decision. Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role 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 the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations (and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969) as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases considering the bar that constitutes gross misconduct and dismissal is a high one.

Bunyan v United Dominions Trust (1982) ILRM 404 states “the fairness or unfairness of a 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”.

It is also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her “submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” I note that “Procedural defects will not make a dismissal automatically unfair as an employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee. I will consider this also.

It was clear that a “reasonable employer in the same position and circumstances” would have done and decided as the Respondent did. At the core of any organization is the need for satisfactory standards of behaviour and conduct.

The Respondent feels they are well within its right as an employer to set the standards which it expects employees to adhere to. This is accepted by virtue of Section 6 of the Unfair Dismissals Acts and is also well established through case law. In O’Brien v FCI Ireland it was held that “the warnings issued to the claimant were warranted. It is clear from the content of the warnings that the respondent considered that the claimant had the requisite ability and so sought an improvement in his performance… In the circumstances the Tribunal finds that the respondent was reasonable in its decision to dismiss the claimant.”

The Respondent contends that the actions of the Complainant contributed fully 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. 

I find that the employee contributed to his own dismissal and that the process used during the disciplinary process was fair and in line with the rules of natural justice

In this case the evidence presented clearly demonstrates that this was a fair dismissal procedurally and the Claimant contributed to his own demise.

Therefore, I find this dismissal to be fair so the Complainant’s case fails.

I find that the claim is not well founded based on the evidence provided and I find in this case the employee was fairly dismissed therefore this case fails.